In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.
The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations. The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.
Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007. In his Green Paper The Governance of Britainhe proposed:
… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed. The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.
The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings.Continue reading →
For the past decade House of Commons select committees have held pre-appointment scrutiny hearings with preferred candidates for some of the most senior public appointments. Many select committee chairs and members consider these to be a waste of time because there is no power of veto. However, research published in a new Constitution Unit report suggests that they have much more influence than committees realise. Robert Hazell outlines these findings.
Although little remarked upon at the time, one of Gordon Brown’s more significant constitutional reforms was the introduction of pre-appointment scrutiny hearings. Following his 2007 White Paper The Governance of Britain, the government agreed that candidates for 50 of the most senior public appointments would be scrutinised by the relevant select committee before the government confirmed their appointment. Some select committee chairs and members consider such hearings a waste of time, because they have no power of veto; but Constitution Unit research has shown that they have more influence than select committees realise.
In the last ten years select committees have conducted just over 90 pre-appointment hearings (for a full list see here). The Constitution Unit has conducted two evaluations of their effectiveness: first in 2009, studying the first 20 hearings; and second in 2016-17, when we looked at the next 71. We found three cases where the candidate withdrew following a critical hearing; and two instances where statements or disclosures at a hearing subsequently triggered a resignation. So pre-appointment scrutiny undoubtedly has an impact, even though committees have no formal power of veto: they are an important check on the integrity and effectiveness of senior public appointments, and a curb against ministers abusing their powers of patronage. And their effectiveness cannot be measured solely by the number of negative reports – the select committee hearings also help to deter ministers from putting forward candidates who would not survive this additional public scrutiny.
The puzzle remains that select committee chairs do not recognise how much influence they wield. There are two reasons for this. First, the baleful example of Washington: when pre-appointment scrutiny was introduced, many MPs anticipated that the hearings would be like confirmation hearings in the US Senate, which does have a power of veto. Second, although pre-appointment scrutiny does provide an important check, it is rare for an individual committee or chair to have experience of thwarting an appointment: there have only been five such cases in the last ten years. So for most committees, most of the time, pre-appointment scrutiny can feel like a bit of a chore.
In December the government published its latest list of special advisers, revealing a small reduction in numbers under Theresa May compared to David Cameron’s 2015 government, with the reduction falling mostly on departments rather than the centre. In this post Ben Yong and Harmish Mehta examine the new list. They argue that by reducing the number of special advisers in departments Prime Minister May has prioritised political control over technocratic measures of effectiveness.
When Theresa May first became Prime Minister there were a number of reports (including in The Times, The Telegraph and Civil Service World) that she had insisted on a cap on the salaries of special advisers (spads) – which in effect would limit both the number and quality of spads appointed. This cap, the reports said, would deter good people from entering government. How true are these claims?
Just before Christmas, the government made its annual data release, setting out the number of spads and how they are distributed across government. There are now 83 spads in government; down from 95 under Cameron’s 2015 government, according to the data release. The centre (broadly defined as No. 10 and the Cabinet Office) has ‘lost’ just one spad; the key Whitehall departments have lost eleven (most significantly from the merging of BIS and DECC into BEIS; and in the Treasury). So there has been a drop in numbers, but this has fallen mostly on departments, not the centre. There has been the usual grumble about salaries and cost, but that is standard fare.
The bigger question is what all this says about May’s government, and more generally, British government. In popular parlance, spads are regarded as a waste of money and at worst, a pernicious breed of quasi-politicians. Within Westminster and Whitehall, however, they have long been accepted as part of British government. Spads are people the minister can completely trust, in a lonely and difficult role; they provide political advice of a kind that career civil servants often cannot; they can help coordinate government. It is this latter view of spads which informs some criticisms of May’s policy on spads (see The Spectator and The Telegraph). Limiting the number of spads and the kind of spads via a salary cap means limiting government effectiveness.
The Supreme Court will be the centre of political attention this week when the government’s appeal of last month’s High Court ruling on the triggering of Article 50 is heard. Robert Hazell and Harmish Mehta offer an overview of what the case is about, the likely outcome and its implications for the Brexit timetable.
The Brexit appeal to be heard by the UK Supreme Court (UKSC) from 5 to 8 December is the constitutional case of the century. All eyes will be on the Court hearing (which is to be broadcast live). And not just in Britain, but around the world. In recent weeks Robert Hazell has been advising foreign embassies, banks and investment managers from New York to Tokyo about the significance of the case, and the consequences which may flow from the court’s decision. They were particularly concerned about the impact on the timetable, the likelihood of the government getting authorising legislation through parliament, and the possibility of Brexit being delayed or even aborted. Here are some answers to their most frequently asked questions.
What is the case about?
On 3 November the High Court ruled that it was unlawful for the government to use prerogative powers to trigger Article 50 of the Lisbon Treaty to start the negotiations for Brexit, without reference to parliament. The government accepts that the judgement requires legislation to authorise the triggering of Article 50. But it has appealed to the Supreme Court to have the judgement reversed. All 11 Justices will hear the appeal from 5 to 8 December in a packed timetable. Their judgement is expected in January.
What is the likely outcome?
The case has generated huge interest amongst constitutional lawyers. Initial comment was strongly supportive of the High Court judgement, but since then the 30 or so commentaries on the UK Constitutional Law Blog have been more evenly divided. The government is likely to lose the appeal, because it has not significantly shifted its ground from the arguments it advanced in the High Court. In particular, it still maintains that Article 50 is irreversible: once triggered, it leads inexorably to the UK’s departure from the EU. The reasons for that are political: the government does not want to allow the possibility of second thoughts. But it seriously weakens the government’s legal case. It enabled the claimants to show that triggering Article 50 would lead inevitably to the abolition of statutory rights, such as the right to vote in European Parliament elections, and the alteration of UK statutes. They then argued that under a series of cases going back to the seventeenth century, statutory rights can only be abolished and UK statutes can only be altered by another statute, not by the prerogative.
The coverage of last Thursday’s High Court judgement on Article 50 has understandably focused on its immediate consequences for the process by which the UK will leave the European Union. However, if upheld by the Supreme Court, it is also likely to have wider constitutional significance. In this post Harmish Mehta explores the implications of one part of the court’s judgement, that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law or diminish the rights of individuals. He suggests that this could mean that the government could not withdraw from the European Convention on Human Rights without parliamentary approval.
Part of the UK constitution is the judgements of its courts of law. Such judgements can have transformative and prolonged effects on UK constitutional practice.
On 3 November, the High Court (‘the court’) handed down its judgement in R (Miller) v Secretary of State for Exiting the European Union ( EWHC 2768), which stated that the executive does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union (‘TEU’) for the United Kingdom to withdraw from the EU [para. 111]). The UK Supreme Court will hear the appeal against the judgement on 5-8 December.
Of course, Miller has a considerable impact on the prospects of the UK exiting the EU in the near future. However, it should not be forgotten that Miller is a judgement of wider constitutional importance. Subject to it being modified by the Supreme Court, it has the potential to shape the UK constitution beyond Brexit. This is partly the consequence of its appeal to, and development of, longstanding and far-reaching principles of constitutional law. It rivals even R (Jackson) v Attorney General ( UKHL 56) in its exploration of the UK’s constitutional history and statements of apparent constitutional truisms.
In this post I will explore the implications of one part of the court’s judgement, which amounts to what I will call, for brevity alone, the ‘unmaking principle’. This principle is that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law, be it statute or common law, in any way, or diminish rights of individuals.